Conditions – Lesson 6

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[Rabbi Michael Abraham] Right. According to this, it comes out—well, yes, it is important that the act actually happened, as long as his refraining from making it happen is not because of the Torah; it’s not due to the Torah. If someone intended to eat pork and ended up with lamb in his hand, that really is not a transgression, because no result occurred. In the case of “if he did it, it is ineffective” and yet you still get lashes, that’s because in principle the result also occurred. The Torah did not allow it to happen, but in principle the result also occurred. What? Yes, but there is a condition that the result occur. And that is indeed an essential condition in defining the transgression—at least from your perspective, that it would occur. Meaning, unless the Torah prevents it from happening, it is as though it happened. But you still need that condition, that it happen, because otherwise, if someone intended to eat pork and ended up with lamb in his hand, why is that not a transgression? Fine, there is—I’ll just go back and make one remark. Now I’m returning. There are Ritva and Tosafot HaRosh, and they ask—they explain the Talmudic passage where the Talmud says: greater is one who is commanded and does than one who is not commanded and does. The question is why. Usually people give all kinds of explanations—you know, that you have a stronger evil inclination if you’re commanded, or things like that. But Ritva and Tosafot HaRosh say, what are you talking about? The explanation is that one who is commanded and does has two positive results from what he did. First, he obeyed a command; and second, there is the positive result of the act itself. One who is not commanded and does achieved the positive result of the act, but there is no response to a command here. Therefore he is less great.

Anyway, for our purposes: the later authorities ask—a number of later authorities ask—from a Mishnah in Chullin that says that one who slaughters on the Sabbath or on Yom Kippur, his slaughter is valid. And the question is: why is his slaughter valid? After all, “if he did it, it is ineffective,” and we rule like Rava in Jewish law, that “if he did it, it is ineffective.” So some later authorities wrote that when the prohibition is a prohibition on the act, not on the legal effect generated by it, then we do not say “if he did it, it is ineffective.” Say there is a prohibition on the act of murder. So what can you say? Can you say that he is not murdered because there is a prohibition against murder? The act was done. If there is a prohibition on a legal effect, you can say that if that legal effect is against the Torah, then the Torah does not allow it to take effect—like temurah, like betrothal without food, clothing, and conjugal rights, or things of that kind. But if a certain act is what was prohibited, and the act was done, then you cannot say “if he did it, it is ineffective.” Okay? Now, in the case of one who slaughtered on the Sabbath or on Yom Kippur, the prohibition is a prohibition on the act. You cannot say “if he did it, it is ineffective”—the act was done. Okay? The act was done. Now what are you going to do? Say that you’ll invalidate the slaughter? Invalidating the validity of the slaughter changes nothing, because the prohibition is not producing a valid slaughter. The prohibition is taking a life. The fact that you did it in order to slaughter is something else, but every taking of life is prohibited on the Sabbath. So here you cannot say “if he did it, it is ineffective.” Therefore it is effective. All right?

That’s one formulation. Meaning: “if he did it, it is ineffective” was said only about legal effects, not about acts. That is one formulation. Regarding legal effects, it’s basically what I explained concerning betrothal without food, clothing, and conjugal rights. What did I explain there? I said: when you want to impose a legal effect, a legal effect of that sort that is not defined by the Torah does not exist. You have nothing to impose. Okay? So all that applies when you are dealing with legal effects, but you cannot say that a murder involving a prohibition does not exist. So therefore he is not murdered? He is murdered. Or that taking life in a prohibited way on the Sabbath means you didn’t take life? I took life. Here, the carcass is lying here. What do you mean I didn’t take life? You cannot say “if he did it, it is ineffective” about reality; you can say it about a legal effect. And what stands behind this, as I said earlier, is that “if he did it, it is ineffective” regarding a legal effect is not necessarily a penalty or something like that. Rather, it says: there is no such legal effect. Meaning, if you create a legal effect of a sort not defined by the Torah, then you simply have nothing to impose—there is no such legal effect. That’s all. If it were a penalty, then I would say, well, maybe they would also penalize one who slaughters on the Sabbath by saying his slaughter will not be valid. That sounds very plausible. But if it’s not a penalty, it simply means that it does not take effect. When I slaughtered, I slaughtered—or I took life—and now the animal has been slaughtered with a valid slaughter. That is one formulation.

There is a second formulation: that “if he did it, it is ineffective” was said—and this probably does move in the direction of a penalty—only where, if you cancel the result, the prohibition will be canceled. For example, in temurah. I say: if I say “if he did it, it is ineffective,” then the substitution will not pass to the second animal, and then I have essentially prevented the prohibition. When the Torah does not allow something to take effect, that is only where removing the result will cancel the prohibition. The Torah basically wants to prevent prohibitions. What? Then there is a conception here that is indeed something like a penalty. In a place where even if you remove the result, that will not cancel the prohibition—like slaughtering on the Sabbath or Yom Kippur—say the slaughter is not valid; still, you took life, the prohibition was committed. So no—the Torah there does not cancel the result, because you gain nothing by it in terms of preventing the prohibition.

That is the second formulation. But taken simply, this formulation is not plausible. Because we saw that according to Rava’s opinion—we rule, after all, and follow Rava’s position, since that is the halakhic ruling—in Rava’s view, the prohibition is not that the second substitution takes effect. The prohibition is performing the act of substitution, that he violated the Merciful One’s command; for that he gets lashes. So why do you need to cancel the second substitution? It will not prevent the prohibition. If the whole purpose of canceling the second act is to prevent the prohibition, and that is how you explain “if he did it, it is ineffective,” then that goes against what Rava himself says. Rava himself says the opposite: that the prohibition is that he violated the command of the Merciful One, and therefore it does not matter whether the act is canceled or not canceled; the prohibition remains in place.

It may still be possible to explain this and say: yes, the Torah prohibited you from performing the act of substitution, but it prohibited that because it did not want there to be a result of substitution. It’s just that the fact that it did not want there to be a result of substitution is the reason for the verse, the reason for the prohibition. The prohibition itself is: do not substitute. All right? And then you can say: fine, in a place where the result is not problematic from the Torah’s perspective—it is not the thing that is problematic from the Torah’s point of view—the Torah does not cancel it. So perhaps one can adopt such a formulation. But basically, in principle, if something involves a prohibition, then the assumption is that the Torah will not allow that thing to happen. All right? But if I slaughter the animal, it cannot not allow that to happen. The animal is slaughtered. And if it invalidates the validity of the slaughter, that will not prevent the prohibited thing from occurring, right? Therefore there we do not say “if he did it, it is ineffective.” But of course, something like this you can say only about legal effects; you cannot say it about actions. The Torah cannot cancel an action; once the action was done, it was done. Where there is a legal effect that the Torah defines, then you can say that the Torah does not allow it to take effect—or does not define it at all, and therefore there is nothing to impose.

Yes, those are the two formulations I mentioned, but it is only about legal effects, not about actions. And then this basically means that the second explanation is already very close to the first. The first explanation basically says: regarding actions, you cannot say “if he did it, it is ineffective,” because the action was done. The second explanation says: when do you say “if he did it, it is ineffective”? When it saves the prohibition. And if it does not save the prohibition, then we do not say “if he did it, it is ineffective.” When is that? When the act is an act that was done in any case. So these two formulations are already very, very close. But it may be that there is a difference between them.

Suppose I am talking, for example, about an act of acquisition—say I made an acquisition on the Sabbath. Will the acquisition take effect? Here it depends. If you say that where the Torah would prevent the prohibition, it cancels the result, then in acquisition it would cancel it, because if the result did not occur, then the prohibition was not violated. What? No, a legal effect only means that it is possible to cancel it. An act does not belong to the category of cancellation. A legal effect can be canceled. But even with legal effects, when do you cancel? Only where canceling the legal effect will save the prohibition—bring about a situation in which no prohibition was violated. And that is the case in acquisition, right? But according to the second formulation it is not like that. Because what does the second formulation basically say? That a legal effect the Torah defined—if you do it not as the Torah defined it, then there is no such legal effect, there is nothing to impose. Okay? And that is not true in acquisition. Because even if you did it on the Sabbath, that is not a case like betrothal without food, clothing, and conjugal rights. Very simplistic. Exactly. You violated a prohibition, but the acquisition is the ordinary acquisition the Torah defined. I cannot say that the Torah did not define it. At most you can say it imposed a penalty. You cannot say it did not define it.

More than that: acquisition is not even a legal effect the Torah defines. It does not even belong to the category where one says that the Torah did not define such an acquisition. Acquisition exists even without the Torah. Therefore, unlike temurah, where you are dealing with consecration and so on—those are actions constituted only by the Torah, those halakhic acts—but acquisition is a legal act that exists even without the Torah. So you cannot say that if you did it in a way the Torah does not like, then it did not define it and you have nothing for it to take effect on. The mouth that prohibited is the mouth that permitted, right? If the Torah defined the legal effect, it can also define what kind of legal effect it is and when yes and when no. But in acquisition, the Torah does not define the legal effect. So there you cannot say that since the Torah did not define it, you have nothing to impose. It must be—if you want to say it will not take effect there, that can only be if you understand it as some kind of penalty. The Torah penalizes and says that the acquisition will not take effect. All right?

Now, regarding acquisition, this really is a question. At the end of tractate Beitzah, that question comes up there: if someone made an acquisition on the Sabbath, does the acquisition actually take effect or not? There is some Rabbi Akiva Eiger there who leaves it unresolved. In Beitzah 36. The Talmud says that one who—how does it go there? I think it speaks about betrothal on the Sabbath. It says that betrothal on the Sabbath takes effect; it is just forbidden to do it, because it is like buying and selling. They ask there why the betrothal takes effect. How does it go there? Because the man doing the betrothal is wicked, basically, if he betroths on the Sabbath, and the witnesses are wicked—I no longer remember. There is some question of Rabbi Akiva Eiger on that matter. In principle one could also ask simply from the perspective of “if he did it, it is ineffective.” If it involves a prohibition—even though this is only a rabbinic prohibition—if it involves a prohibition, then perhaps the betrothal should not take effect. But that is essentially the case of acquisition. And nobody asks from the angle of “if he did it, it is ineffective.” At least I have not seen that they ask it.

Okay, so this actually brings me to a broader remark. One of the formulations I brought here is a formulation that speaks about a situation in which the Torah restricts a legal effect that it itself defined. And if it defined these legal effects, then it can also restrict them. It can also say when yes and when no, and how it is done, and so on. There is a cluster of examples like this, with similar logic, that I call territorial considerations. Meaning, all sorts of places where—even though there is a mechanism the Torah defined—if you use it in a way the Torah does not like, it will not work.

For example, the Talmud—the Mishnah really already starts with—there is a rule that says: a person cannot prohibit something that is not his. Suppose I bow down to your asherah or to something that is yours; I do not prohibit it. Or if I pour a libation with your wine, I do not prohibit it. Because a person cannot prohibit something that is not his. So why, really? Why indeed can a person not prohibit something that is not his? In the end, if you pour a libation with the wine, then it is caught in prohibition; that is the Torah’s definition. The logic is apparently that the Torah is not willing to let you operate in territory that is not yours. You cannot generate effects on things that are in my territory, that belong to me, on my property. Because, you know, a person could come and pour a libation with all my wine. Meaning, and this is also imperceptible damage and indirect causation, and in civil law he is even exempt from payment. It is a total catastrophe. What? No, bowing to a mountain is something else. Since it is attached to the ground, you do not prohibit something that is attached. Yes. Then the question arises: what about a tree? A tree, yes, you do prohibit—that is an asherah. What? No, an ownerless tree. What does “not his” mean? Not someone else’s. You cannot—you cannot prohibit something belonging to someone else.

So the point is that where you invade territory that is not yours, even though the Torah defined—then it will not happen. Now, not entirely—what? I can’t hear. No, that is exactly the point—no, in my own case yes, in my own case yes. What do you mean, it does not want to allow it? It sees it as a prohibition. Maybe according to Rava you can ask why it is effective; perhaps it should be ineffective but I would still get lashes. All right? But if I pour a libation with something that belongs to someone else, then no—it simply is of no effect, meaning it does not transfer. So the claim is that there is a demarcation by which the Torah demarcates its determinations, its definition of legal effects, and says: here I did not speak. If you want to make betrothal of such-and-such a kind, I do not allow such a thing. When you want to do temurah, to consecrate something in a way that is prohibited, by way of substitution—I do not allow such consecration. All right? So similarly I also want to say it here. A person cannot prohibit something that is not his because when he acts outside his own territory, the Torah does not allow him to act.

Or there are other places. For example, with forbidden mixtures in a vineyard it is not like that—or at least there is a dispute. What happens if someone prohibits another person’s vineyard? He brings the produce close to the other person’s vineyard, and thus a forbidden mixture in the vineyard is formed. There there is a tannaitic dispute whether it prohibits or does not prohibit. And there are some medieval authorities who want to argue similarly in cases like: if I mix your meat and milk together, is it prohibited or not? The answer is yes, it is prohibited. Why? After all, a person cannot prohibit something that is not his. As we said above, this is reality: it is meat and milk mixed together. When you are talking about legal effects, you can say that the Torah did not define certain legal effects if they are not done in the way it defined. But here the meat and milk are mixed; that is the reality. As we discussed regarding one who slaughters on the Sabbath and on Yom Kippur. What? Libation wine. Yes, so the claim is that libation wine is essentially a legal effect of prohibition on the wine. It does not derive from physical reality. After all, these are matters of thought; nothing happened to the wine, the wine itself underwent no change. Only the person’s thought to pour it as a libation to idolatry is what prohibits it. A metaphysical reality. A metaphysical reality, yes, but not a physical reality. A metaphysical reality is still a reality that the Torah defines, and the Torah can also define it differently. A physical reality either happened or did not happen. Yes, I do not mean here reality versus non-reality, but physical reality versus metaphysical reality—or at least perhaps also. Because even if you say that in Jewish law there is a metaphysical reality at its base—if you do not say that, then there is no problem at all; if you do say it, there is still a difference between physical reality and metaphysical reality.

Another example of territorial considerations: what happens if someone threatens me with a gun so that I give him a shekel, and if not he will kill me? Am I allowed to kill him under the law of a pursuer, or do I have to give him the shekel? What, to save a shekel you are allowed to kill a person? And the answer is yes. I may kill him under the law of a pursuer. Why? I do not owe him the money. He wants to coerce me into giving him a shekel, and he is counting on the fact that I am righteous and I do not kill a person to save a shekel, and on that basis he is exploiting the law to extract money from me that does not belong to him—my money. In such a situation the law freezes itself. There is no prohibition of murder, so kill him. You do not have to give him the shekel, and if he threatens to kill you then kill him first under the law of a pursuer. Again, clearly on the halakhic level you are forbidden to kill in order to save a shekel; that is not the point. The point is that the prohibition of murder is frozen in a place where someone is trying to make cynical use of it. You are trying to rely on the fact that I am righteous and do not violate the prohibition of murder in order to extract money from me—that you cannot do.

I brought—this example can basically be learned from a Talmudic passage in Sanhedrin that speaks about Zimri: that if Zimri had turned around and killed Pinchas, he would not be executed for it. Zimri could have killed Pinchas under the law of a pursuer. The question is why. Kli Chemdah at the end of parashat Balak asks: he could have stopped sinning; if he had stopped sinning, Pinchas would not have killed him. And we know that one may not kill a pursuer if it is possible to save him by injuring one of his limbs. If you can save the pursued person without killing the pursuer, then it is forbidden to kill the pursuer. So Kli Chemdah says: true, but he wants to worship idolatry—it is his right; or to commit adultery—it is his right. And what does “his right” mean? It is a sin; the Holy One, blessed be He, will settle accounts with him, but that is not your business. To you I owe nothing; my account is with the Holy One, blessed be He. And if I want to continue sinning and you continue threatening me, I will kill you under the law of a pursuer. So all the more so if someone threatens me over a shekel. A shekel I certainly do not owe him. But to stop adultery is itself an obligation, and I am obligated to stop the adultery—and even that I am not required to do, and I may kill the one threatening me. So if he threatens me in order to make me give him a shekel, then obviously I may.

I brought this as one of the examples in an article I wrote about killing a burglar, in the case of Shai Dromi. The case where he shot that Bedouin who entered to steal from him. Exactly. So the claim was that he wanted to save his property, to keep the person from coming in to steal. And that is not—according to the law it is forbidden. You were supposed to call the police, let him steal, and then call the police. That really outraged me. So I wrote an article and said: absolutely not; he was allowed to kill the Bedouin, and if the Bedouin had not entered, that would have been his own problem. If I am allowed to put poison in a sandwich—if you steal the sandwich, you die; don’t steal, your problem. Or glass—there is some urban legend about some American who put glass in a window, and then a burglar came in and sued him because he got injured, sued the homeowner and won. I don’t know if it’s true; there is some such urban legend. A scandal. I can put whatever I want there; you come in to steal, that is your problem, you take the risks.

In any case, they raised against me the issue of the burglar tunneling in. The Talmud says there that the reason you are allowed to kill the burglar is only out of concern that he will kill you, if you defend yourself and protect your property then he will kill you. And since that is so, you are allowed to kill him first. So you see there is no permission to kill a burglar in order to save property. The permission is to kill him because there is a law of pursuer, because he may kill you. So they told me that I was wrong; from the case of the tunneling burglar you see that I am not right. In the journal Techumin I had a long argument about this issue. In the end they published it with their comments after all the debates. They sent it to the editorial board, to the management. There were three: Rabbi Ariel, Rabbi She’ar Yashuv Cohen, and Rabbi Yisraeli, if I remember correctly—though Rabbi Yisraeli had already passed away by then. But those were the three when they founded Techumin; they were the three. They sent it to them; they did not remember at all that they were connected to Techumin, which was very funny. Fine, we will publish it with our comments.

My claim was that according to their view, the person should simply not defend himself, not defend his property. Right? What is the problem? He is not really in mortal danger, only because he is defending his property. So don’t defend your property. Lock yourself in a room, let him steal whatever he wants, just as the police say to do today. Lock yourself in a room and afterward file a complaint with the police; they will make atonement offerings from it—they will do nothing with it. Why is he allowed to defend himself? It is obvious—my argument was that obviously you are allowed to kill the burglar in order to save property, not because of danger to life. It’s just that if there is no danger to life, then you can save the property without killing him. Fight with him and save the property; obviously in such a situation you are forbidden to kill him. But if you are concerned that he will kill you when you defend yourself, then you may kill him first. But what you are killing him for is not self-defense in the personal sense; what you are killing him for is to save the property. You are allowed to do everything you can to save the property. That was the claim.

True, if you can save the property without him killing you and without killing him, then do not kill him—that is obvious. But it does not say there that only if he threatens to kill you are you allowed to kill him. On the contrary, it says you are allowed to kill him unless you can save the property and he will not threaten to kill you. And one of my proofs was: why does the Talmud say there—the Talmud brings a source from a verse for why you are allowed to kill the tunneling burglar even on the Sabbath.

[Speaker J] Calling the police is a kind of saving the property.

[Rabbi Michael Abraham] Say that again? That calling the police is a kind of saving the property. Even if the chance of it happening is low. Well, we know that is not true. The chance is more or less zero. The Talmud there brings a source from a verse for why you are allowed to kill a tunneling burglar even on the Sabbath. If this were an ordinary law of pursuer, why would you need a verse saying you may kill him on the Sabbath? In the regular law of pursuer—why here yes? Because this is not preservation of life. You could shut yourself in the house and not defend the property—what is the problem? And the novelty is that you are allowed to defend your property not only at the cost of a human life but even at the cost of desecrating the Sabbath. What is the idea? The idea is again the same idea I said earlier: if a person exploits the law to harm your property, to enter your territory, then in your territory the law freezes itself. There will be no restrictions. Do what you need to do in order to defend yourself. There is no issue of murder, no issue of desecrating the Sabbath, no issue of anything. The law is frozen.

Meaning, if someone uses the law cynically in order to harm my rights and take them for himself, then the law says: I freeze myself. And that is the point. All these things are basically a logic—a similar logic—to what we saw here: that when there is a situation in which the Torah wants its definition not to apply, it restricts its definition. Here my definition applies, but there it does not. If you are making a substitution, then one can consecrate; but if you do it by way of substitution, then here one cannot consecrate. I am restricting the prohibition. Yes, it is a freezing, a freezing of that law, of that prohibition. Or in the case of a person prohibiting something that is not his, the Torah freezes the prohibition; it says: you are trying to harm someone else and exploit the law in order to do so, so I freeze the law and you will not succeed in doing it. That is basically the claim.

So this is where I close the matter of “if he did it, it is ineffective,” and basically what we learn from there is that there are situations in which the Torah says: whoever wants to act against My will and do so by means that I Myself created, that the Torah itself defined—then no, those means will be frozen; it is impossible. In that sense, if I return to stipulating contrary to what is written in the Torah, you can say the same thing. After all, at least according to one side—we saw two ways of understanding what the Torah’s novelty is in the section on conditions. One possibility is that the Torah introduced the very possibility of making a condition. After all, without the Torah I would not know that it is possible to make conditions. Why? Because his acquisition has been exhausted, and we discussed that. A second possibility: no, the fact that one can make conditions is obvious. In every legal system one can make conditions. The Torah introduced that if you want to make a condition, then you must do so according to the law of conditions. All right? Meaning all the rules of conditional stipulations. These are two ways to understand the Torah’s innovation.

Let’s go with the first possibility. The first possibility basically says that the Torah is the one that introduced the possibility of stipulating. After all, without the Torah’s innovation it would not have been possible to stipulate. If that is really so, then it seems to me that in a case of stipulating contrary to what is written in the Torah, we should simply say: “if he did it, it is ineffective.” “If he did it, it is ineffective” means that the act—you want to use something the Torah defined, namely a condition, and you want to do so in a way contrary to the Torah’s will; the Torah freezes it, there is no possibility of making such a stipulation. Okay? Then it comes out that if someone stipulates contrary to what is written in the Torah and the condition is void, that is not part of the law of conditions; it is part of the more general principle that one cannot act against the Torah: “if he did it, it is ineffective.”

The second possibility: according to the one who says that the possibility of stipulating is not what the Torah defined. The possibility of stipulating exists regardless. On the contrary, the Torah came to restrict it: only if you do it according to the law of conditions. Then now, if one stipulates contrary to what is written in the Torah, why indeed is the condition void? Because presumably it does not fit the law of conditions. So according to that view, stipulating contrary to what is written in the Torah belongs to the law of conditions; it is not connected to “if he did it, it is ineffective.” All right? Because “if he did it, it is ineffective” does not operate on things the Torah did not define. Only on things the Torah defined—then the mouth that prohibited is the mouth that permitted. Therefore according to the view that the Torah did not define conditions, that they exist even without it, then the rule “if he did it, it is ineffective” is probably part of the law of conditions and has nothing at all to do with “if he did it, it is ineffective.”

Okay. Now here, in the commentary to the Mishnah by Bartenura especially, the Mishnah is puzzling. Let’s look at it. The Mishnah there says as follows. A Mishnah in tractate Pe’ah: if someone said, “I am harvesting on condition that what I forget I will take,” then the law of forgotten sheaves applies to him. A person harvests his field; what he forgets—he leaves pe’ah; what he forgets is considered forgotten sheaves, gleanings, forgotten sheaves, and pe’ah, right? So he says: I am harvesting on condition that if I forget something, I am not really forgetting it; I want to take it. All right? So the Talmud says: the law of forgotten sheaves applies to him. What does that mean? The law of forgotten sheaves takes effect; it is not void. His condition is void, meaning that he cannot make such a condition. So Bartenura says: “on condition that what I forget I will take”—the law of forgotten sheaves applies to him, because he is stipulating contrary to what is written in the Torah, and his condition is void. He stipulated contrary to what is written in the Torah, and therefore his condition is void.

Rabbi Akiva Eiger asks about this: this is difficult for me, because what need is there for this? Even if in general his condition would be valid—suppose now that stipulating contrary to what is written in the Torah produces a valid condition. Fine? A condition belongs only where one performs the act conditionally, so that if the condition is not fulfilled, the act will not be fulfilled. What is a condition? We discussed the distinction and the definition of a condition at the beginning of the semester. I said that a condition is basically a qualification of the legal effect I want to impose. If the condition is fulfilled, the legal effect takes hold; if the condition is not fulfilled, the legal effect does not take hold. Okay? But that is not what the person is doing here. What is he saying? I harvest if there will not be forgotten sheaves, but if there are forgotten sheaves then I am not harvesting? That is not a legal effect; it is an action. Yes? Once again the same distinction between legal effect and action that accompanies us all the time. So how can one even relate to this as a conditional stipulation? It is not a conditional stipulation at all. What Bartenura says is that this is stipulating contrary to what is written in the Torah. He is not stipulating, and therefore it is also not stipulating contrary to what is written in the Torah. Why does the law of forgotten sheaves apply to him? Simply because there is a law of forgotten sheaves in the Torah. It is like my saying: I eat this on condition that it will be permitted for me to eat pork. So is that void because I am stipulating contrary to what is written in the Torah, that pork is forbidden? You can say whatever you want beforehand. You eat pork—pork is forbidden. You forget something and want not to leave it for the poor; the Torah says that what you forget you must leave for the poor. Not because of “one who stipulates contrary to what is written in the Torah, his condition is void,” but because the Torah imposes the law of forgotten sheaves.

And what is the idea here? The idea is that there is no stipulation here at all. How can you call something like this stipulating contrary to what is written in the Torah? He is not stipulating. Quite apart from what is written in the Torah, this is not even an act of stipulation at all. Yes, that is what he says—like one who betroths, divorces, or sells conditionally. But here, if he stipulates, what is he stipulating? How does it make sense to make harvesting depend on a condition? Harvesting is an action, not a legal effect. If I harvested, I harvested. How can one say that if the condition is not fulfilled, then the harvesting will not be harvesting? And it requires further analysis.

After that he goes on to ask—and we’ll see this later—he goes on to ask that one who betroths a woman on condition that he does not owe her food, clothing, and conjugal rights, this too is not a condition. He simply does not want to give food, clothing, and conjugal rights; it is exactly like pe’ah. True, there it is betrothal—that is, a legal effect—not an action. Fine. But it is still not a stipulation. What is the stipulation? What is it—that if she wants food, clothing, and conjugal rights there is no betrothal? It is not that if she wants it—you are not stipulating with her. If you stipulate with her, by the way, it may be that it would be valid; we will see that in the sugya in our chapter. No—I am stipulating in general that the law of food, clothing, and conjugal rights should not apply to me. So if I stipulate like that, it is like stipulating that I want to eat pork. It has nothing to do with stipulation at all. With whom are you stipulating?

Now it is not so simple, we will see that later. What? Right, because in harvesting it is much stronger; therefore in harvesting—that is the first paragraph of Rabbi Akiva Eiger that I read now. About food, clothing, and conjugal rights he speaks in the following paragraphs; we will see that later. But with harvesting it is obviously much stronger, because it is an action and not a legal effect. So that is a very strong question. How can we understand this question? According to what I said above, it is simple. “One who stipulates contrary to what is written in the Torah, his condition is void” is not a rule from the law of conditions. What? Right. And it is not a law from the law of conditions at all. “One who stipulates contrary to what is written in the Torah” basically means saying “if he did it, it is ineffective.” It basically means: leave it, you cannot act against the Torah. The figurative expression for that is that he is stipulating contrary to what is written in the Torah, but even that itself is not really something from the law of conditions. There is no law of stipulating contrary to what is written in the Torah; there is a law that whoever goes against the Torah, it does not work. Therefore that could also be relevant here. True, it is not perfectly smooth, because if I say: I eat this on condition that even though it is pork, on condition that the prohibition of pork is forbidden—not likely that they would call this stipulating contrary to what is written in the Torah. It is also not—there is nothing here that is supposed to take effect, and if I go against the Torah, the Torah will not let it take effect. It is not a legal effect; harvesting is an action. So this still does not completely resolve it, but it is more—it is precise. It blunts the force of the question. It says: yes, this is a borrowed expression; the meaning is that you cannot go against the Torah, that is basically the meaning. True, here it is more removed from what we saw. So that is one possibility.

But in truth this leads me to the next question, really about food, clothing, and conjugal rights themselves. Even in the case of food, clothing, and conjugal rights, when someone betroths a woman on condition that he will not owe her food, clothing, and conjugal rights, that too is not really a condition. If he stipulates with her—again—that she waives food, clothing, and conjugal rights, that is a full-fledged condition. To say whether that is stipulating contrary to what is written in the Torah or not—we will see a dispute in the Talmud. But if he stipulates with her, I can understand that there is a stipulation here. But if he stipulates with the Holy One, blessed be He—what exactly does he want to stipulate? About what? It is obvious, after all, that betrothal is only with food, clothing, and conjugal rights. So what do you want? I say: even though this is a legal effect—true, it is a legal effect, not an action like harvesting—but even regarding the legal effect, what exactly am I stipulating there? I am making the betrothal on condition that it not include food, clothing, and conjugal rights. But the concept of betrothal includes food, clothing, and conjugal rights. It is like saying: I eat this on condition that it is pork, on condition that it is permitted to eat pork, that there be no prohibition. That simply is not a stipulation—what is the difference?

This brings us to the next part of Rabbi Akiva Eiger. Rabbi Akiva Eiger indeed asks this. I may just start it here, because this is really a whole topic—I’ll just present the basic distinction. In the Talmudic passage in Nazir 11a, the Talmud speaks there about the difference between a condition and a reservation. There is a difference between when I make a condition and when I leave something out. What does that mean? In the Mishnah it says: “I hereby become a nazirite on condition that I may drink wine and become impure through the dead”—he is a nazirite. Yes, that is exactly like betrothing on condition that you have no claim on me for food, clothing, and conjugal rights. He is a nazirite, and all of them are forbidden to him. “I know there is naziriteship, but I did not know that a nazirite is forbidden wine”—he is forbidden, and Rabbi Shimon permits, and so on. Yes, and Rabbi Shimon forbids appears at the end of the Talmudic discussion.

The Talmud asks: then let Rabbi Shimon disagree also in the first clause. Why does Rabbi Shimon not disagree in the first clause? One who says, “I hereby become a nazirite on condition that I may drink wine and become impure through the dead”—why does Rabbi Shimon not disagree there? So it says: Rabbi Yehoshua ben Levi said: Rabbi Shimon did indeed disagree even in the first clause. Ravina said: in the first clause Rabbi Shimon does not disagree. What is the reason? Because this is stipulating contrary to what is written in the Torah, and anyone who stipulates contrary to what is written in the Torah, his condition is void. All right? You say “I may drink wine and become impure through the dead”—that is stipulating contrary to what is written in the Torah, exactly like betrothal on condition that you have no claim on me for food, clothing, and conjugal rights. And Rabbi Yehoshua ben Levi? What—Rabbi Yehoshua ben Levi said that Rabbi Shimon does disagree there too, but after all this is stipulating contrary to what is written in the Torah? Yes, he wants to claim that according to Rabbi Shimon the condition is valid. So he says: Rabbi Yehoshua ben Levi could say to you: this phrase “on condition” is like “except.” What does that mean? When he says “I am a nazirite on condition that…”—or in the parallel case of food, clothing, and conjugal rights—the phrase “on condition” here is interpreted like “except.” I am a nazirite only with respect to haircuts—sorry, only not with respect to drinking wine and impurity from the dead. That is called a reservation, not a condition.

What is the difference between a reservation and a condition? A reservation is when I impose a partial legal effect; I leave part of the legal effect aside. A condition is when I impose the entire legal effect on condition that something happens. In this case the condition is that part of the legal effect not be realized, but as a mechanism it is a different mechanism. I impose all of it. Therefore we saw earlier that if you stipulate contrary to what is written in the Torah, the whole act stands and only the condition is void, because in the end you imposed the act in full, and afterward you just want to remove part of it; that cannot be done. But if you make a reservation, I say: from the outset I am only a nazirite regarding haircuts—not “on condition,” not in the language of—so he says that even when you said “on condition” here, that phrase is interpreted like “except.” And that is what is called a reservation and not a condition. Okay?

A baraita supports Ravina: if one said, “I hereby become a nazirite on condition that I may drink wine and become impure through the dead,” he is a nazirite and all of them are forbidden to him, because he is stipulating contrary to what is written in the Torah, and anyone who stipulates contrary to what is written in the Torah, his condition is void. So they bring a proof for Ravina that this is indeed a condition, not a reservation. But according to Rabbi Yehoshua ben Levi it is a reservation.

And I think this Talmudic discussion is the focal point of Rabbi Akiva Eiger’s question that we saw earlier. Because when Rabbi Akiva Eiger asked about “you are hereby betrothed to me on condition that you have no claim on me for food, clothing, and conjugal rights,” it is exactly the same thing as here. And Rabbi Akiva Eiger basically asked: after all, this thing is not a condition at all; it is a reservation. You basically want to create betrothal without giving food, clothing, and conjugal rights. That certainly cannot be done. I only think that if that were really the case, what should the law be? That she is not betrothed at all—not that she is betrothed and also has food, clothing, and conjugal rights. Right? Only the mechanism of condition allows me to say that she will be betrothed. Because the mechanism of condition, as we saw earlier, basically says: first of all I betroth her fully; I just want that if there are food, clothing, and conjugal rights, the betrothal should be uprooted. But the condition does not succeed in uprooting the betrothal because this is stipulating contrary to what is written in the Torah, so the betrothal remains. But if you did it as a reservation from the outset—I betrothed her from the outset without the obligation of food, clothing, and conjugal rights—there is no such betrothal, because if there is no such betrothal then there is nothing at all, so he did not betroth her at all.

Therefore Rabbi Akiva Eiger is basically asking why this is a condition at all and not a reservation—and in other words, why the law is that the condition is void and the act stands, rather than that the act is void. That is really the question. So this brings us back to the question of condition versus reservation, and I will talk about that next time.